Are Your Employment Practices Setting You Up for a Discrimination Claim?

The Department of Justice (DOJ) recently reached a settlement against a pizza restaurant franchisee with 31 locations in Florida for $140,000. Why? To answer that question we need to unpack the onboarding process and focus on the Employment Eligibility Verification form (the “Form I-9” or “I-9”). It is important for leaders within the full-service restaurant industry to understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).

First, the basics—All employers must complete a Form I-9 for any new hire within three business days of hire, regardless of whether a company or franchise has three or 300 employees. The form is issued by the U.S. Citizenship and Immigration Services (USCIS), and its purpose is to document a new hire’s identity and work authorization. Separately, if an employer participates in E-Verify, they must create a case in the electronic employment eligibility verification system through USCIS within three business days of hire. It is a tight timeline, but failure to do so can lead to a substantive violation under the INA. Civil penalties start at $216 per form and may increase to $2,156 per form.

When completing the Form I-9, there are certain rules employers must follow. Most importantly among those is whenever a new employee is hired, he or she must be provided with following documents: the two-page Form I-9, including the Lists of Acceptable Documents, and the Instructions for Form I-9, Employment Eligibility Verification.

The two-page I-9 form, which is supported by the 65-page Handbook for Employers (M-274), the Instructions booklet, and an entire section on USCIS’s website, appears simple but commonly trips up employers. Ensuring compliance is particularly important given that the current administration is prioritizing enforcement of immigration laws in an effort to protect American jobs.

There are two main parts to completing the Form I-9, and it involves both the new hire and the employer. A new hire must complete section 1 of the Form I-9 and may do so either before their first day of hire, if they have been offered employment and accepted the offer, or, on their first day of employment. The employer then must complete section 2 of the Form I-9 within three business days of when the individual begins to work for pay.

Section 2 of the Form I-9 is where an employer’s hiring practices could run afoul of the anti-discrimination provision of the INA. The Immigrant and Employee Rights Section (IER) of the DOJ enforces the anti-discrimination provision of the INA found in the U.S. code. This federal law prohibits three things: citizenship status discrimination and national origin discrimination in hiring, firing, or recruitment, or referral for a fee; unfair documentary practices during the Form I-9 and E-Verify process; and retaliation or intimidation for raising a discrimination claim.

As previously mentioned, the DOJ recently reached a settlement related to an investigation into unfair documentary practices against a pizza restaurant franchisee with 31 locations in Florida for $140,000. The allegation was that the chain, Pizzerias, “routinely requested that lawful permanent residents produce a specific document—a Permanent Resident Card—to prove their work authorization, while not requesting a specific document from U.S. citizens.” The DOJ alleged that Pizzerias had a pattern or practice of requesting a List-A document, the permanent resident card, from newly hired lawful permanent residents because of their citizenship status, while not asking the same of U.S. citizens.

This action is not acceptable because a lawful permanent resident, like any other individual who completes the Form I-9, may present any of the documents listed in the Lists of Acceptable Documents as long as it is either a List-A document, such as a permanent resident card or U.S. passport, or a List-B and List-C document, like a driver’s license and unrestricted social security card.

In addition to the civil penalty, Pizzerias must now post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

Separately, in 2015, McDonald’s USA was the subject of a DOJ investigation into claims that the corporate-owned restaurants (not the franchises) engaged in a pattern or practice of discrimination during the re-verification process for lawful permanent residents. Specifically, McDonald’s re-verified expiring permanent resident cards of lawful permanent residents. That practice is not acceptable and McDonald’s was fined $355,000.

In summary, here are some general practical tips when completing the Form I-9 to avoid discrimination in the employment eligibility verification and re-verification process.

Never specify which document(s) an individual must present for purposes of completing the Form I-9. Individuals can choose any of the documents from the Lists of Acceptable Documents and can show either a List-A document, like a U.S. passport or a List B and List C document, like a driver’s license and unrestricted social security card.

Non-U.S. citizens should not be asked for additional or different documentation establishing their legal status or work authorization in the United States. For example, if a new hire checks the box in section 1 that they are a lawful permanent resident or an alien authorized to work and then proceed to provide a lawful permanent resident card or an employment authorization card, a “work permit,” a discriminatory practice would be to ask that individual for additional or different documentation, such as their social security card. There are no gold stars awarded for completing section 2 of the Form I-9 by completing List A, B, and C.

Just because a new hire states that they are a lawful permanent resident does not mean they must provide their green card as proof of work authorization.

Do not re-verify an expiring green card.

Employers participating in E-Verify must post an English and Spanish version of not only the E-Verify Participation Poster, but also the IER’s “Right to Work Poster.” Both can be accessed through an employer’s E-Verify account.

Montserrat Miller is a Partner in the Washington, D.C. office of Arnall Golden Gregory LLP. Ms. Miller counsels and defends companies regarding their hiring practices and compliance with the government’s Form I-9 and E-Verify employment eligibility verification requirements. Her practice includes defending employers in civil and criminal workplace investigations, and conducting immigration-related internal investigations and Form I-9 audits. She served as a member of the American Immigration Lawyers Association’s (AILA) Verification and Worksite Enforcement Liaison Committee. She blogs at Workforce Compliance Insights.